In August 1895, a ship docks in San Francisco carrying a cook named Wong Kim Ark — born in that very city, armed with an airtight certificate proving it. The customs collector refuses to let him off anyway. What follows is a four-month standoff in the harbor, a Supreme Court case that will define what “American” means, and a legal argument that never really died. This episode traces Wong Kim Ark’s fight for the citizenship he was already owed — from Chinese Exclusion to Angel Island interrogations to the Supreme Court’s 2026 ruling that cited his case by name. Some questions, it turns out, don’t stay settled.
Note: The version of this episode originally released contains an error. Marissa erroneously stated that Charles Sumner eventually became a Supreme Court Justice. The error has been edited out.
Transcript for: Accident of Birth: Wong Kim Ark, Birthright Citizenship, and the Case That Won’t Stay Settled
Marissa: Picture it! It’s August 1895. The steamship Coptic comes through the Golden Gate after a month at sea, and among the passengers waiting to disembark is a young cook named Wong Kim Ark. He’s in his mid-twenties. He has spent the crossing in steerage, consuming bad food and worse water.
He is not nervous, exactly. He has done this before, and he has come prepared the way a careful man prepares. Before he left the previous November, he went to a notary and had a certificate drawn up. There’s a photograph fixed to the center of it— sepia, oval, his face open and calm, eyes turned slightly to the left. Around the photograph, in blue type, the document states the essential facts: that this is Wong Kim Ark, that he was born in the City and County of San Francisco, and that he intends to return. Three white men have signed their names attesting that all of this is true. A customs inspector stamped it on the way out. In the lower corner, the great seal of the State of California.
Averill: It is, by any reasonable standard, an airtight piece of paperwork. The collector of customs, a man named John Wise, looks at it and does not dispute a word of it. Nobody is claiming the certificate is forged. Nobody is claiming Wong was born somewhere else. And then Wise refuses to let him off the ship.
This is not the first time Wise has done this. Eleven years earlier he had detained a fourteen-year-old boy named Look Tin Sing, born in California, on exactly the same theory— that Chinese ancestry disqualified you from the birthright the Fourteenth Amendment appeared to guarantee. The court told him he was wrong. He kept going.
Marissa: So Wong Kim Ark stays on the ship. When the Coptic sails he’s transferred to the Gaelic, and then to the Peking— shuffled from vessel to vessel because in 1895 the United States excluded so few arrivals that California had not yet built anywhere to put them. He spends something like four months this way, in the harbor, in sight of the city he was born in, before somebody posts two hundred fifty dollars in bail (about eight thousand dollars today) and he’s allowed to walk back into San Francisco and go back to work as a cook while the courts decide whether he legally exists.
Averill: The government was not confused about the facts. The government knew exactly where Wong Kim Ark was born. The argument was never about the evidence. The argument was that being born in San Francisco was not, in his case, enough— because of who his parents were, and what he looked like, and what language he spoke.
Marissa: That argument has never really gone away. It was made in 1857. It was made in 1895. It was made in 1916. It was made in 2025. It was rejected by the Supreme Court on June 30, 2026— by a narrower margin than the headlines suggested— and it was made again six weeks later. So let’s go back and figure out where it came from. And near the end, let’s give the other side a genuinely fair hearing, because the version being argued in the federal courts this year is not the version being argued in 1897, and if you leave here thinking it is, you’ll have missed a few important things.
I’m Marissa
And I’m Averill
Marissa: and we are your historians for this episode of Dig.
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Marissa: I want to start with something that surprised my students: the original Constitution says nothing about birthright citizenship. Nothing. It gives Congress the power to set a uniform rule of naturalization. It says the President has to be “natural born,” without ever defining what that means. It requires seven years of citizenship to sit in the House and nine for the Senate— so the framers clearly thought citizenship was a real and significant status. And then it moves on. It never says who is one. It never says whether you get it by birth on the soil, or from your parents, or both.
Averill: For eighty years, that question was handled by inherited English common law, state practice, and a great deal of improvisation. And there was a live theoretical problem underneath it. Under English common law (the rule set out in Calvin’s Case in 1608) nearly everyone born in the King’s dominions owed the King a permanent, unbreakable allegiance in return for the King’s protection. Once an Englishman, always an Englishman. But the American Revolution was, among other things, an act of mass renunciation: a whole population declaring that political bonds could be dissolved and that governments derive their powers from consent. So the Founders concluded that what England had was subjectship, not citizenship. Which left open the question of whether England’s rule about birth on the soil survived the break.
Marissa: Remember that question. It’s not a technicality. It is the foundation of the dissent in Wong Kim Ark’s case, and of three dissents handed down this June. Two early statutes matter, because both sides of today’s fight reach for them. The first Congress passed a naturalization law in 1790 limiting naturalization to “any alien being a free white person” and that same law quietly established citizenship by descent: children born abroad to American citizens would count as natural-born. So from the very beginning the American rule had a blood component as well as a soil component. Remember this bit; Wong Kim Ark’s own sons will come up against this issue. Then in 1795, Congress began requiring applicants to renounce and abjure absolutely all allegiance to any foreign prince. Renunciation, not just adherence. Remember that too; two dissenting justices lean on this idea.
Averill: The practical effect of all this is not contested: for a century and a half, the naturalization door was open to white immigrants and closed to nearly everyone else. And the Founders drew a line most of us no longer draw instinctively— between the right to be free and the right to be a citizen. You could hold, in their framework, that slavery was wrong AND that free Black Americans had no claim to citizenship. Separate questions.
Which brings us to the disaster. In 1857, Chief Justice Roger Taney wrote the Dred Scott decision, and he did it by looking backward. He turned away from the letter of the law and reached instead for the supposed original intent of the framers, binding the flexible, contested, still-unsettled word “citizen” to the most exclusionary assumptions available in 1787. Black Americans, he held, were not and could not be citizens of the United States.
Marissa: Note what Taney conceded and what he denied, because it becomes important. He agreed that Black Americans were born in the country and owed allegiance to the government— which are the exact criteria for citizenship/subjectship under common law. He simply held that they were never intended to be included under the word “citizen.” For them, as the current Chief Justice put it this June, blood was made the rule instead of soil.
The redress came in stages, and the first stage is an opinion nobody remembers. In 1862, in the middle of the war, Lincoln’s Attorney General Edward Bates issued a landmark opinion rejecting the premise that citizenship is ever hereditary. “In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in.”[1] The exceptions were few— essentially the children of foreign ministers. Then the Civil Rights Act of 1866, which tried to turn Bates’s opinion into statute: all persons born in the United States “and not subject to any foreign power, excluding Indians not taxed,” are citizens.
Averill: A short detour that matters. The act’s first draft was narrow and racial: all persons of African descent born in the United States are declared citizens. The senators promoting the bill withdrew it the next day and replaced this specific language with universal language, without any distinction of color. That substitution is the hinge— the narrow version would have been the path of less resistance in 1866, and Congress took the broader one deliberately.
Then President Andrew Johnson vetoed the bill— and his veto message complained, in so many words, that under this law the Chinese of the Pacific states, Indians subject to taxation, Romani people, and the entire race designated as Blacks would all be citizens. Congress overrode the veto without changing a word. This is the strongest single piece of evidence in the entire dispute: the President told Congress exactly which groups its language would sweep in, and Congress declined to narrow it. Their intent seems quite clear.
Marissa: Two months later, worried the Act might be repealed by a future Congress, they put it in the Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Two conditions: you have to be born here & subject to the jurisdiction of the USA.
Now notice the change in wording between the statute and the amendment, because an enormous amount rides on it. The statute says “not subject to any foreign power.” The amendment says “subject to the jurisdiction thereof.” One negative, one affirmative. Are they the same idea in two grammars, or two different ideas? Justice Gray, thirty years later, said the affirmative phrasing removed any possible doubt in favor of the broad rule. The people who disagree say it’s simply the positive form of the same test, and that the same Congress cannot plausibly have reversed itself in eight weeks without saying so. Park that. We come back to it twice.
Averill: Congress was debating Black citizenship, obviously. That was the point. But some legislators saw exactly where the language led, and the record of that exchange is the most fought-over evidence in the case. Senator Edgar Cowan of Pennsylvania asked: what about the Chinese in California? What about the child of a Roma born in Pennsylvania? Would they have any more rights than a sojourner? During the Civil Rights Act debate he’d put it more bluntly— the children of German parents are citizens, but Germans are not Chinese. He got answers. Trumbull, asked directly whether native-born Romani children would be citizens, said: undoubtedly. And on the amendment, a Californian— Senator John Conness— told the Senate to stop making trouble on account of the Chinese, said plainly that the amendment would produce American citizens of Chinese descent, and said the children of all parentage whatever, born in California, should be treated as citizens of the United States.
Marissa: Two more pieces of the Reconstruction settlement matter. First, that same year Congress passed the Expatriation Act, establishing that Americans could renounce citizenship voluntarily— housekeeping that becomes, thirty years later, the sharpest weapon in the dissent in Wong’s case. Second, when Congress rewrote the naturalization laws in 1870, it extended naturalization to people of African descent and pointedly, deliberately did not extend it to the Chinese.
That second decision is the hinge of everything that follows. It split the Chinese community into two legally distinct populations: immigrants who could never become citizens no matter how long they lived here, and their American-born children, who were citizens from the moment they drew breath. Everything Wong Kim Ark goes through happens along the seam between those two categories.
Averill: The WHAT of citizenship was answered in 1868. The WHO took considerably longer. Women’s suffrage arrives in 1920. The Indian Citizenship Act in 1924. Chinese immigrants get access to naturalization only in 1943, and the racial bar leaves the statute books entirely only in 1952.
Now the ugly part. In 1868— the same year as the Fourteenth Amendment— the United States signed the Burlingame Treaty with the Qing dynasty, guaranteeing rights and protections to Chinese immigrants here. The two documents are contemporaries. One says everyone born here is a citizen; the other says the people coming from China will be protected. The next thirty years are the systematic dismantling of the second and the attempted dismantling of the first.
Marissa: The exclusion laws did not arrive all at once. The Page Act of 1875 came first— a thinly veiled circumvention of the Burlingame guarantees, aimed at “Oriental” women, criminals, and contract laborers, and in practice it stopped most Chinese women from immigrating at all. Then the Chinese Exclusion Act of 1882 barred most Chinese laborers, though merchants, teachers, students, and diplomats could still enter if they could satisfy an official that they were what they said they were. Then the Geary Act of 1892 made it harsher. The Exclusion Act’s stated purpose, in a sponsor’s words, was to “protect the white people of the Pacific states from a degrading association with an inferior race.”
There were two consequences to this.
Averill: First, Section 14 stated flatly that no court, state or federal, could ever admit a Chinese person to citizenship. The ordinary path to membership was locked, bolted, and welded shut. And it was worse than that. Chinese law at the time treated renouncing allegiance to the emperor as a capital matter: a man who did it could be beheaded on return, his family sold. So a Chinese immigrant in San Francisco in 1890 could not become an American, and could not stop being Chinese. He was locked in from both ends. Chief Justice Fuller will cite that fact in his dissent— and use it to argue that such a man could never make a permanent home here at all.
Second, and this is the part we live with: the Chinese Exclusion Act built the American immigration bureaucracy. The forms, the photographs, the stamps, the seals, the affidavits, the inspectors, the detention facilities, the deportation machinery. All of it was invented to police one ethnic group, and all of it is still here. The certificate Wong Kim Ark carried in 1894 exists because of that law. So does the office of the man who refused to honor it.
Marissa: So by the mid-1890s, the situation for an American-born person of Chinese descent is this: you cannot naturalize, because Congress said so. Your only possible claim to citizenship is the Fourteenth Amendment. And nobody has told you for certain whether the Fourteenth Amendment applies to you. So were you a citizen or an alien?
Alienage wasn’t simply the absence of citizenship. It was its own status with its own contents, and by the 1890s those contents were dire. Part of that was federal— detention, interrogation, the standing threat of deportation, all of which Wong experienced as a merely alleged alien. But the more interesting part is local, and it’s a small masterpiece of legal engineering.
Averill: Then came Reconstruction— and notice that the second sentence of the Fourteenth Amendment shifts, mid-sentence, from the privileges of citizens to the rights of persons. No state shall deprive any person of life, liberty, or property without due process; nor deny to any person the equal protection of the laws. Black litigants in the South used that clause to knock down laws that targeted them by name, and in the 1870s Chinese litigants in the West started doing the same thing.
So the western legislatures adapted. If you can’t write “Chinese,” write “alien.” If you can’t write “alien,” write “native of China.” When California rewrote its constitution in 1879, it dropped the racial language and declared that no “native of China” should ever exercise the privileges of an elector. Nationality, not race. Washington’s 1889 constitution made citizenship the requirement instead. The fishing statutes went from naming the Chinese, to banning “Chinese shrimp nets,” to barring aliens ineligible to citizenship from getting a license at all.
Marissa: Do you see the trap? Since Chinese immigrants were permanently barred from naturalizing, “alien ineligible to citizenship” WAS a racial category— it just wasn’t written down as one. And by substituting alienage bars for racial ones, the states left one door standing open: American-born Chinese, who were citizens, fell outside every one of these restrictions.
Which is why Wong Kim Ark’s case wasn’t only about a ship in a harbor. If he was a citizen, he could vote in California. If he was an alien, he could not. Citizenship was required not just for elected office but for a long list of ordinary jobs— schoolteacher, policeman, city clerk, health inspector, in some places even the contract workers repaving the streets. In San Francisco, only citizens could get a liquor license. My favorite of these, if that’s the word: when California passed a civil rights act in 1897 prohibiting racial discrimination in inns, restaurants, hotels, barbershops, and theaters— the protection ran only to citizens.
Averill: So the government lawyers arguing against Wong Kim Ark were not only trying to close the nation’s gates. They were trying to ensure that every American-born Chinese person in the West could be locked out of the ballot, the professions, public employment, and the equal protection of the state’s own antidiscrimination law. That is what was on the table.
Wong Kim Ark’s parents were named Wee Lee and Wong Si Ping. They came separately from Guangdong and settled in San Francisco’s Chinatown— Gold Mountain, in the phrase the Chinese used for California— where Wong Si Ping owned a grocery store with partners at 751 Sacramento Street. The family lived on the second floor, above the shop.
Marissa: Wee Lee went into labor with her first child in the fall of 1870, in that apartment, essentially alone. San Francisco hospitals would not admit a Chinese patient. White doctors would not come to a Chinese home. There were almost no Chinese midwives, and almost no Chinese women at all— fewer than five thousand in the entire country, in a nation of thirty-nine million. As a merchant-class woman she had bound feet, which mostly kept her indoors. She spent her days watching a slice of Sacramento Street through a second-story window. The baby she delivered was Wong Kim Ark. He was a rarity twice over: of the 63,254 ethnic Chinese counted in the 1870 census, only 518 had been born in the United States.
Averill: The Wongs were not planning to stay forever, and they had reasons. Their children were shut out of most San Francisco public schools. There were special taxes on Chinese fishermen, laundrymen, and miners, designed to make leaving attractive. There was an ordinance making it a misdemeanor to carry baskets on a pole across your shoulders— which is how Wong Si Ping and every other Chinese merchant moved goods across town. There was a law requiring every prisoner in the county jail to have his hair cut within an inch of his scalp, aimed squarely at men who wore the queue.
And then there was the violence. In October 1871, when Wong Kim Ark was a year old, a mob of five hundred white men descended on the tiny Chinatown of Los Angeles and murdered eighteen Chinese men in a few hours— shot, stabbed, hanged from a balcony with clothesline when the rope ran out. It was reported across the national press.
Marissa: The Wongs stayed. Perhaps they assumed that what happened in a Southern California backwater couldn’t happen in cosmopolitan San Francisco. Then came the Panic of 1873 and a long depression, which gave the violence a political engine. On the evening of July 24, 1877, a mob of hundreds— many newly out of work— marched on the Chinese quarter of San Francisco, tore up the wooden sidewalks to use the slats as clubs, broke into laundries and shops, and tipped the coal lamps over on the way out to set the buildings alight. The New York Times reported that they had resolved to exterminate every “Mongolian” and wipe out the “hated race.” Four Chinese men were dead by morning.
Averill: Shortly after, the Wong family packed up, gave up the store and the home at 751 Sacramento Street, and sailed for China. Wee Lee never saw the United States again. Her son came back. He returned as a boy with an uncle, his schooling over, and went to work— dishwasher first, then cook, for a while in a mining camp in the Sierras. In 1889, at nineteen, he went to China to find a wife, because by then there were fewer than four Chinese women in the United States for every hundred Chinese men, and marriage to a white woman was unthinkable and, under California’s anti-miscegenation law, illegal. He married a seventeen-year-old named Yee Shee, who had bound feet like his mother. They set up in a five-room house with brick walls and a dirt floor in Ong Sing village, Guangdong. Then the economics of Gold Mountain called him back, and he left before his first son was born.
Marissa: There’s a photograph of him from 1894, taken for his return certificate: hair in the traditional queue even after twenty years in America, high-necked mandarin tunic rather than a western shirt. He sailed for China that December, met his eldest son, Wong Yook Fun, for the first time, and conceived a second child with the wife he had not seen in four years.
Then he got on the Coptic.
When the government denied Wong entry in 1895, it was not the accident of an overzealous clerk. Wong Kim Ark was selected. The government had wanted a vehicle for years. From the enforcers’ point of view, birthright citizenship was a loophole in the Exclusion Act— as one U.S. Attorney complained in 1888, the remarkable increase in the percentage of arrivals claiming to be citizens showed the desperate lengths people would go to defeat the exclusion laws. A few lower courts had already held that the Fourteenth Amendment covered children born here to Chinese parents; the most important was Look Tin Sing in 1884 (Wise’s fourteen-year-old detainee) decided by Justice Field on circuit. But the Supreme Court had dropped doubts in passing in earlier opinions, and doubts in dicta are fertile ground.
Averill: That’s why the paperwork being flawless was the point, not a problem. A weak case, where the documents were sloppy or the birthplace was doubtful, would have been useless. They needed a case where the only remaining question was the constitutional one. Here’s the part that complicates the story, and I think makes it better: the other side wanted the test case just as badly. Wong was not fighting alone. Within days, the Chinese Consolidated Benevolent Association— known in the press as the Chinese Six Companies— had hired a lawyer for him, Thomas Riordan, and filed a habeas petition. The petition was, by modern standards, slapdash; names and dates squeezed in cursive between the typewritten boilerplate. It was good enough to get him a court date.
Marissa: We think of using the courts to protect a persecuted minority as a strategy invented by the NAACP. The Chinese got there first, out of necessity. The Six Companies kept a stable of white establishment lawyers on retainer to litigate relentlessly, and in the decade after the Exclusion Act, Chinese litigants filed more than seven thousand cases in federal court— out of a population of only about 110,000. Seven percent of an entire people went to court. In federal district court they won over eighty-five percent of the time. It was at the Supreme Court that the record was abysmal.
Averill: Which brings me to a detail I can’t stop thinking about. Wong’s lawyer had an easy argument available: the government had already admitted Wong as a citizen in 1890, on an earlier return. He could have won narrowly on that ground and gone home. He chose not to. He told the press he preferred that the broad principle of citizenship be settled for all time. Whether he asked his client’s permission before betting a man’s life on a constitutional question, the record does not say.
Wong won in the lower court. The government appealed. And in 1898 the Supreme Court took up United States v. Wong Kim Ark.
Marissa: On the afternoon of Friday, March 5, 1897, the justices filed into the Old Senate Chamber. Chief Justice Melville Fuller sat in the middle, in a chair he’d had raised so he’d be level with his taller colleagues, which meant his feet rested on a hassock. The date was not an accident. William McKinley had been sworn in the day before. Neither side wanted this case tangled up in an election, because a decision the wrong way could void the voting eligibility of hundreds of thousands of native-born children of noncitizens who had spent their entire adult lives believing they were Americans.
Arguing for the United States was Solicitor General Holmes Conrad, a Democrat from a prominent slave-owning Virginia family and a former Confederate cavalry officer— and, though he wouldn’t have enjoyed the comparison, the only man in that room besides Wong Kim Ark who had personally had his citizenship taken away, since everyone who fought for secession lost their citizenship rights during the war.
Averill: His textual argument was the strongest available. “Subject to the jurisdiction thereof,” he said, “means political jurisdiction, not merely territorial.” Wong’s parents were subjects of the Emperor of China. The domicile of the parent is the domicile of the child. Their people are his people.
The government’s brief also made a claim worth remembering, because it will detonate later: that all Chinese persons, as a rule, are but temporary residents of this country. Not just this family. The whole population. Put a pin in that. He was oddly silent, though, on where his theory led. The amendment’s language is race-neutral, which means there’s no way to write a rule disqualifying the native-born children of Chinese immigrants without also disqualifying the native-born children of Irish and German ones. And if the child of an alien is himself an alien, then that child’s children are aliens, and so on forever.
Marissa: The man willing to say it out loud was a private San Francisco lawyer named George Collins, who filed an amicus brief and simultaneously litigated the case in the newspapers. Collins had been publishing law review articles pushing this argument since 1884; he’s a major reason the case reached the Court. His brief opens like a sermon: the honor and dignity of American citizenship is sacred, and must be protected from what he called the foul and corrupting taint of a debasing alienage. Were Chinese children born here to share with the descendants of the patriots of the Revolution the exalted qualification of eligibility to the Presidency? If so, he answered himself, American citizenship is not worth having. (One of our own SCOTUS justices will say something similar in 2026.)
Averill: That is the whole argument of 1897, stated with a clarity the Solicitor General avoided. It was never about jurisdiction. Jurisdiction was the instrument. And I’ll say this once and come back to it: the fact that the argument served that purpose in 1897 does not by itself prove the jurisdictional argument is wrong. Instruments outlive their users. Keep both thoughts in your head.
Wong’s side was argued by Maxwell Evarts and J. Hubley Ashton, Supreme Court veterans hired by the Six Companies. They called the government’s position an extraordinary proposition. It would replace citizenship based on birth on the soil with citizenship based on parentage, and in doing so strip citizenship from everyone born to noncitizens— including the very group the Reconstruction Congress was most obviously protecting: the former slaves and their children, all of whom Dred Scott had declared noncitizens.
Marissa: Wong’s lawyers cited an 1849 school segregation case litigated by Charles Sumner (soon to be Senator) who wrote:, “All men are created equal,” says the Declaration of Independence. “All men are born free and equal,” says the Massachusetts Bill of Rights. These are not vain words. Within the sphere of their influence, no person can be created, no person can be born, with civil or political privileges not enjoyed equally by all his fellow-citizens: nor can any institution be established recognizing distinctions of birth. Here is the Great Charter of every human being drawing vital breath upon this soil, what ever may be his condition, and whoever may be his parents. He may be poor, weak, humble, or black—he may be of Caucasian, Jewish, Indian, or Ethiopian race—he may be of French, German, English, or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. He is not poor, weak, humble, or black; nor is he Caucasian, Jew, Indian, or Ethiopian—nor is he French, German, English, or Irish; he is a Man, the equal of all his fellow-men…”[2]
Averill: Sumner lost this case. The opinion against him became the foundation for the separate but equal clause that would be upheld in Plessy in 1896. But, he refers to the state as a parent and then he made the strategic argument, the one Wong’s lawyer had already made in the San Francisco Call: think of all the people in this country born to parents who owed allegiance to Great Britain, Germany, Italy, or some other European power. Are all these people to be declared not citizens?
That was the play. Tie the Chinese cook to the millions, and they stand or fall together. The other side understood the stakes just as clearly. If these children were citizens, warned the Call, they could come and go as they pleased, hold public office, and vote. It would be the height of absurdity to give such rights to an “unassimilable race” whose native-born children remain as distinctly alien as the rawest arrival from Canton.
Marissa: The Court sat on the case for over a year. Out on bail the whole while, Wong Kim Ark kept cooking and kept renting a room in San Francisco, presumably wondering each morning whether the Supreme Court was about to declare him an alien with no right to remain.
On Monday, March 28, 1898, he won, six to two.
Justice Horace Gray wrote for the majority, and if you go looking for a ringing declaration of racial equality, you will not find one. The opinion runs about twenty-one thousand words and it is, as the legal scholar Jennifer Lee Koh points out, startlingly quiet about race. It does not say Chinese Americans are full members of the political community. It builds a mountain of technical authority instead.
Averill: Gray makes three core moves, and I’ll give them to you in plain English. First: The English common law rule— born in the realm, therefore a subject— came across the Atlantic with the colonists and was carried forward by the new republic. The Fourteenth Amendment didn’t invent birthright citizenship; it restored it, in order to overturn Taney. Second: The phrase “subject to the jurisdiction thereof” is not empty. It preserved a short list of traditional exceptions: the children of diplomats, the children of enemy forces in hostile occupation, and members of indigenous tribes— in every case because those parents were not subject to the full range of American civil and criminal law.
Marissa: Third, and this is the one the current Court leaned on hardest, Gray said “subject to the jurisdiction” must carry the meaning Chief Justice Marshall gave it in an 1812 case, The Schooner Exchange v. McFaddon. Marshall defined a nation’s jurisdiction as its full and complete power within its own territory, with an implied waiver only where exercising it would insult the dignity of a foreign sovereign— most often, foreign ministers. And Marshall was explicit that private individuals of a foreign nation who spread themselves through our territory “as business or caprice may direct” are amenable to the jurisdiction of the country. “Business or caprice.” That phrase is going to do a lot of work in 2026.
Averill: Gray also wrote that every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. Note that qualifier. Domicile. It comes back. And when the opinion does gesture at the human stakes, it worries about white people. Gray points out that if you deny citizenship to Wong Kim Ark, you must also deny it to thousands of children of English, Scottish, Irish, and German parentage who have always been treated as Americans. Not “this man belongs,” but “the rule you’re proposing would catch people you clearly didn’t mean to catch.” Wong’s lawyers built that argument, and the Court took it exactly as offered.
Marissa: The Court also had to handle Elk v. Wilkins from 1884— John Elk, born on U.S. soil, who had left his tribe and lived among white citizens, and was still held not to be a citizen. Gray had written that one too. His move is process of elimination: no comparable excluding circumstance applies to Wong, therefore Wong is a citizen. Which leaves the exclusion of Native Americans entirely undisturbed— that would take another twenty-six years and an act of Congress.
Here’s my favorite detail, and it’s the one the literary scholar Carrie Hyde builds her argument around. In the middle of this dry, technical opinion, Gray reaches for popular fiction— Edward Everett Hale’s 1863 story “The Man Without a Country,” about an officer sentenced never to hear his country’s name again. “Double allegiance has no place in our law,” Gray writes, “and the existence of a man without a country is not recognized.” So Wong Kim Ark gets his citizenship not because America affirmatively claims him, but because the alternative, a man belonging nowhere, is intolerable to the legal system. His citizenship is established, as Hyde puts it, negatively.
Averill: Now the dissent, which deserves more than a wave, because it is the direct ancestor of three opinions handed down this June. Chief Justice Fuller, joined by Justice Harlan, went at the premise. Birth on the soil, he argued, is a feudal doctrine, built on a subject’s indissoluble and involuntary loyalty to a king, and it had no more survived the American Revolution than it survived the French one. What could be more contrary to perpetual allegiance than a Declaration announcing that a people may dissolve the political bands connecting them to another and stand absolved from all allegiance to the British Crown?
Marissa: He had statutory support. Congress recognized the right of expatriation in 1868, the very same year as the amendment, and since 1795 had required new citizens to renounce and abjure all allegiance to their former sovereign. A country built on the right to change allegiance, Fuller argued, cannot simultaneously run England’s rule that allegiance is fixed by the accident of where your mother happened to be. And he found textual support in the Civil Rights Act’s phrase “not subject to any foreign power”: everyone born here is subject to territorial jurisdiction, so that phrase must be about political allegiance.
Then he turned to the Chinese. Fuller did NOT argue that domicile was irrelevant. He argued the opposite: that the amendment recognized an essential difference between birth during temporary residence and birth during permanent residence— and that Wong’s parents, because Chinese law bound them on pain of death and American law forbade them to naturalize, could not acquire a permanent home here no matter how long they stayed.
Averill: So the claim is not that the Wongs hadn’t settled. They had been here for years, running a business, raising a child. The claim is that people like them were constitutionally incapable of settling. And the government’s brief said the same thing about the entire Chinese population.
That is the sentence to remember when we get to 2026, because the modern argument runs on domicile too.
Fuller also left a puzzle: if birth on the soil is the test, what about children born abroad to American citizens? A blood rule explains them; a soil rule needs a statute to patch the hole. Wong Kim Ark’s own sons will walk straight into it. And underneath it all, Fuller’s philosophical claim, quoting Swiss jurist Emer de Vattel:
“ The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.”[3]
Marissa: A word about Justice Harlan, who joined that dissent— the same Harlan celebrated for his lone dissent in Plessy v. Ferguson two years earlier, who wrote that our Constitution is color-blind. He had also dissented in Elk, in favor of Elk. But in Plessy itself he had drawn a contrast between Black Louisianans who had risked their lives for the Union and the Chinese, whom he described as a race so different from our own that we do not permit them to become citizens. Elizabeth will do a whole episode on Plessy, and I’ll send you there rather than try to do it justice in ten seconds.
So Wong Kim Ark wins. Case closed, citizenship secured, the country moves forward.
No.
Averill: This is the part that almost never makes the civics textbook, and it has the most to teach us. Koh frames it as the gap between law on the books and law on the ground. The historian Amanda Frost puts it more precisely: the main effect of the decision was to move the fight out of the marble chambers of the federal courts, where the government had just lost, and down into the drab administrative offices of immigration inspectors at ports of entry, where executive officials had nearly unfettered power to decide who was and was not an American. The decision barely changed how many Chinese Americans could actually obtain citizenship, because the naturalization bar was still in force. What changed was the venue. And the tactics came in three forms.
Marissa: One: officials ignored the ruling outright. In 1904 the Secretary of Commerce and Labor refused to admit a native-born citizen who had spent most of his twenty-six years in China but arrived with witnesses to his birth in San Francisco— on the ground, with no legal support anywhere, that a man who waits that long to claim his birthright falls outside the reasoning of Wong Kim Ark.
Two: they made proof impossible. Officials adopted a working presumption that everyone of Chinese ancestry seeking entry was an excludable noncitizen, putting the burden on the “alleged citizen.” And they concluded that no Chinese witness could be trusted— so anyone claiming birthright citizenship had to produce at least two white witnesses to his birth, which, for a person born at home in Chinatown attended by his mother, was frequently impossible. As one dissenting official asked: who else but the applicant’s Chinese relatives would be likely to know?
Averill: Then the interrogations. Applicants and witnesses were separated and questioned for hours or days, hundreds of questions, about the number of rooms and steps in a house they might not have seen in twenty years, the layout of a village, the names of neighbors’ children. Then the answers were compared. This was coupled with physical examinations in which applicants stripped to be measured and assessed— one examiner’s notes list scrutiny of hair, skin, teeth, sexual development, facial expression, and general attitude.
Three: the Supreme Court closed the courthouse door. In 1905, in United States v. Ju Toy, the Court held that Congress could bar courts from reviewing an immigration officer’s determination of citizenship. If an inspector decided you weren’t a citizen, there was no judge to appeal to. Lucy Salyer’s line is that it blurred the line between aliens and citizens by subjecting both to the same bureaucratic discretion.
Marissa: On the walls at Angel Island, someone carved a poem saying that America has power but not justice, that they were imprisoned and treated as guilty, given no chance to explain, and that all he could do was bow his head. Wong Kim Ark’s own family lived every bit of this.
He was so wary of the ordeal that he did not go back to see his wife and children for seven years after winning his case. Every time he traveled, he had to document himself again— and, in a world before fingerprints, prove that he was himself. In 1901 he obtained a sworn affidavit from a white attorney who claimed to be familiar with Chinese physiognomy, attesting that the man in the new photograph and the man in the photograph attached to the old habeas petition were the same person. And that same October, while living in El Paso, he was arrested on the allegation that he was a Chinese person who had unlawfully entered and remained in the United States in violation of the Chinese Exclusion Acts. He posted three hundred dollars to get out. On February 18, 1902, a United States Commissioner declared, once again, that Wong Kim Ark was a citizen entitled to remain in his own country.
Averill: Then his children started to arrive.
On October 28, 1910, his eldest son, Wong Yook Fun— conceived during that first year of marriage in 1890, now about twenty— reached San Francisco Bay on the S.S. Korea, after a week long voyage from Ong Sing village to Hong Kong by wagon and boat and a month in steerage. He was taken by government ferry to the new detention facility on Angel Island, which the press had dubbed the Ellis Island of the West.
Yook Fun was held more than a month before he was allowed to write to his father. Officials translated the letter and filed it in the record, on the lookout for fraud. It says he is in the detention shed, that he is well, that his father shouldn’t worry— and asks for some clothes, half a dozen socks, a cap, and some money. One wonders what the inspectors reviewing a boy’s request for socks thought they had caught.
Marissa: Then they questioned Wong Kim Ark for two days about his parents, his brother, his travels, and above all the placement of the houses and the identity of their occupants in Ong Sing village— which he had last seen five years earlier, and stumbled over. And they questioned the son.
“Q. Which way does your village face?
A. The village faces straight east.
Q. How many houses are there in the first row?
A. When I left there were three. I now understand there are four.”
And on. And on. Who lives in the second house of the first row. What are the names of his children. Where is the schoolhouse. “What is the teacher’s name?— I don’t know, they change every year.”
Averill: On December 27, 1910, the acting commissioner issued his verdict. He did not question Wong Kim Ark’s citizenship. He did not deny that Wong had been in China when Yook Fun was conceived. He found instead that material differences between father’s and son’s testimony showed conclusively that the claim was fraudulent.
Most of the discrepancies were trivial: how much money Wong sent home, whether Yook Fun worked after finishing school, where certain houses stood. One is genuinely strange— Wong testified that his mother died around 1901 or 1902, when the boy would have been eleven or twelve; Yook Fun testified that his paternal grandmother died before he was born. It could be an interpreter’s error, or the calendars. It was enough.
Marissa: Wong Yook Fun was deported to China on January 9, 1911. He never returned.
For thirteen years, none of the other sons tried. You can imagine why. Then, in 1924, the third son, Wong Yook Sue, sailed for San Francisco. Same process, same unanimous denial— but Yook Sue appealed rather than get on the next steamship, and the decision was reversed. Encouraged, the second son, Yook Thue, came the next year and was admitted in March 1925. Asked how he intended to make a living in America, he said he would do whatever his father wanted him to do.
And then, on a hot day in July 1926, the last and youngest son, Wong Yook Jim, arrived on the S.S. President Lincoln. He was eleven. He had spent over a month traveling from Ong Sing village to live with a father he had never met. He spoke no English and was questioned through a translator. He stood four feet two— about half a foot shorter than the average eleven-year-old Chinese boy today— evidence of the thin diet and hard life of the village that had driven all of them to follow their father across the Pacific. He was taken straight into detention and forbidden contact with his father and brothers, the only people he knew in the country.
Averill: According to a letter read into the record, Yook Jim had made the journey to Hong Kong accompanied by Yook Fun— the eldest brother, refused admission sixteen years before, who had stayed in the family’s daily life ever since and evidently did not entirely trust their father to look after a son he had never met. “Please look after him when he arrives,” Yook Fun wrote; “he needs looking after, on account of his tender age.”
Wong Kim Ark pulled every lever. He hired a lawyer. He and Yook Sue submitted affidavits swearing the boy was a citizen because he was the son of a native. The photograph attached to Wong’s affidavit shows a man who looks elderly, though he was only in his mid-fifties— hair clipped short in the western style, the mandarin tunic gone. His son’s photo shows a tiny boy in western dress, collar askew. Side by side they look less like father and son than grandfather and grandson.
After three weeks in detention, on a Friday afternoon in late July, a three-member Board of Special Inquiry convened, questioned the boy, heard from his father and brother, and voted unanimously that Wong Yook Jim was who he said he was. Wong Kim Ark took his eleven-year-old son home to 878 Sacramento Street, four blocks from the room where he had been born more than half a century before.
Marissa: I need to tell you the other half, because leaving it out would make the story cleaner and less true. It’s always more complicated.
Between 1894 and 1940, 97,143 Chinese people were admitted claiming to be native-born citizens. Erika Lee’s assessment is that a large majority of those claims were probably fraudulent. A 1950s program offering legal status in exchange for confession found that about a quarter of Chinese people in the United States in 1950 had entered on a false claim by themselves or a family member— and that figure is almost certainly low.
Averill: Here’s how it worked, and notice that it runs directly through Wong Kim Ark. Because the children of birthright citizens were themselves citizens at birth, a citizen returning from China could report that he had fathered another son— and then sell that slot, supplying the affidavit and testimony to back it up. A “paper son.” Buyers were almost always male, which is why Chinese Americans traveling between the countries reported an absurd number of sons and almost no daughters: one 1925 study of 256 arrivals found they claimed 719 children born in China, 670 of them boys.
Then in 1906 the San Francisco earthquake and fire destroyed the city’s birth records, and claims of birth in San Francisco soared, because there was no longer any way to disprove them. Officials joked bitterly that every Chinese woman in America before the fire must have borne eight hundred sons.
Marissa: It became a cottage industry. You could buy coaching books with hundreds of anticipated questions. Coaches smuggled answers to detainees on Angel Island: notes hidden inside peanut shells split and glued back together, dates and names baked into pork buns, a note wrapped around a peeled orange whose rind was pasted back on. Now put these two realities together: Actual citizens, unprepared to run a gauntlet nobody warned them about, stumbled over questions about the placement of houses in a village they’d left as children— and were deported. Well-coached impostors sailed through. The system punished the real and rewarded the false, simultaneously, by design.
And Wong Kim Ark’s own family was in both columns.
Averill: On Tuesday, October 18, 1960, a middle-aged man in black-rimmed glasses named Wong Hang Juen, who lived on Pacific Street and worked as a cook at a hotel on Union Square, applied for permanent residence. And he confessed that he had entered claiming to be Wong Yook Sue, the citizen son of Wong Kim Ark; that he was in fact a citizen of China; and that he was not related to his immigration father in any way.
He was doing this as part of the Chinese Confession Program, which ran from 1957 to about 1965. It grew out of Cold War fears that Communist China would use paper sons to infiltrate the government; the government offered to let people come clean in exchange for legal residence under their real names. It also required confessors to name others, and Hang Juen had himself been named by someone else. In his one-page typed confession he took pains to add two things: that he believed Wong Kim Ark really was born in the United States as he had always claimed, and that the son called Yook Jim was a true son of Wong Kim Ark.
Marissa: Frost’s judgment was that in a system where legitimate claims of citizenship were routinely attacked or ignored, Wong may well have concluded he had nothing to lose by claiming a paper son as his own. Are these men criminals, or victims of a racist and inhumane system? One Chinese immigrant put it about as plainly as it can be put: if we told the truth, it didn’t work, so we had to take the crooked path.
Here’s where the historian Anna Pegler-Gordon adds something new. We assume citizenship and immigration are opposites— you are a citizen or an immigrant— and we assume a sequence: first you immigrate, then maybe you naturalize. Wong Kim Ark’s sons blow that up. They were born in China, and they acquired U.S. citizenship at birth by descent from their American father, under that 1790 statute. So they were citizens before they were immigrants. And under the Chinese Exclusion Act, they were permitted to immigrate at all only because they were already citizens. Pegler-Gordon calls them immigrant citizens: territorially alien, legally they belong.
Averill: Notice that this is precisely the hole Fuller pointed at— soil can’t explain the citizenship of children born abroad, blood can— except the answer isn’t either/or. Wong Kim Ark was a citizen by soil. His sons were citizens by blood because he was. The American rule has always been both, and the family that proved the soil half also lived the blood half.
That inversion also tells you what these families wanted from citizenship. We assume its value is the right to be present inside a territory. For Chinese Americans under exclusion, the enormous value was mobility— the right to leave and come back, to run a business in San Francisco and a household in Guangdong. Which is why nativists were alarmed. Commissioner-General of Immigration Anthony Caminetti complained in 1916 that a person of the “Mongolian” race lucky enough to be born here was vested by the accident of birth with American citizenship, and could then raise children abroad who could show up at an American port and claim every right of citizenship on the day they landed. That phrase, “accident of birth,” is Collins’s from the briefs. It’s Fuller’s idea from the dissent. It’s the same idea you’ll hear on cable news now.
Marissa: And note what the Bureau tried to do. In 1915, the Department of Labor issued a rule declaring that the foreign-born children of American citizens of Chinese descent were not citizens— targeting one ethnic group by administrative fiat. The Attorney General invalidated it in 1916. The Bureau then required Chinese sons to prove not just paternity but household dependency, a requirement imposed on no one else; the Ninth Circuit struck that down in 1918, remarking— with a straight face, in an era of explicitly racial naturalization law— that it knew of no law making a race distinction in American citizenship.
So the Executive branch tries to narrow birthright citizenship by regulation. Courts strike it down. Executive branch tries again with a modified rule. That pattern is not new. It’s a hundred and ten years old.
Averill: So far I’ve given you the argument against birthright citizenship almost entirely in the voices of Holmes Conrad and George Collins, and that’s rhetorically convenient— once you’ve heard a man describe children as carrying a “foul and corrupting taint,” you’re excused from taking his argument seriously. It’s a cheap victory, and it will leave you unprepared for what’s actually being argued now.
End of Part 1
Beginning of Part 2
The January 2025 Executive Order 14160 directed federal agencies to deny birthright citizenship to children born on U.S. soil if neither parent was a citizen. This provoked a torrent of academic condemnation, much of it insisting there wasn’t a genuine debate— a federal judge in Seattle said he couldn’t remember another case where the government’s action was so blatantly unconstitutional. Then the litigation matured, and the tone changed. That same judge, in a written order still ruling against the government, acknowledged that citizenship does not follow automatically from birth in the territory. A judge in New Hampshire found the arguments nonfrivolous. But the claim that there was nothing to argue about did not survive contact with the briefs. (Perhaps an example of ways that legal opinions can be influenced.)
Marissa: Here’s what’s in them, in five pieces.
One: the text has two conditions, If “subject to the jurisdiction thereof” means nothing more than “physically present and obliged to obey the law,” it does no work— everyone born here satisfies it, including the children of ambassadors, and we know they’re excluded. Something more has to be meant.
Two: there’s a control text, written by the same people eight weeks earlier. The Civil Rights Act of 1866 made citizens of all persons born here “and not subject to any foreign power.” The amendment’s phrase, on this reading, is just the affirmative form of that negative test— the same idea, not a new one. And nobody in the record stands up and says: by the way, we’ve changed our minds and broadened this.
Three: the floor debate is not univocal. I gave you Conness, and Trumbull’s “undoubtedly.” Here’s the rest of the room. Trumbull, asked what “subject to the jurisdiction of the United States” meant, answered: not owing allegiance to anybody else— the clause meant subject to the complete jurisdiction thereof. Senator Howard, who introduced it, said the words ought to imply a full and complete jurisdiction. And Senator Fessenden gave as his example of someone born here but NOT a citizen: a person born here of parents from abroad temporarily in this country. Even the tribal exception, in the debates, isn’t about reservation boundaries— Trumbull, on the floor: the very fact that we have treaty relations with them shows they are not subject to our jurisdiction; we cannot make a treaty with ourselves.
Averill: That’s the sharpest version of the modern argument: “jurisdiction” doesn’t refer to the authority a sovereign could assert over a body standing on its soil, but the authority it actually exercises over someone as a member of its own polity rather than somebody else’s. And Elk v. Wilkins is a finding that points that way. John Elk was born within the territorial United States, had severed his tribal relation, was living among white citizens— and still wasn’t a citizen, because the clause required him to be completely subject to American political jurisdiction.
Four: this was widely understood as an open question, and the executive branch acted on it. In Slaughter-House in 1873 the Court said in passing that the phrase was meant to exclude the children of ministers, consuls, and subjects of foreign states born here. In Minor v. Happersett the next year it said that while nobody doubted children born here of citizen parents were citizens, as to children born here of noncitizens there had been doubts— which it expressly declined to resolve. And the mainstream treatise writers of the period— Wharton, Cooley, Hall, Westlake, and Justice Samuel Miller himself— mostly read the clause the restrictive way. You may think these men were wrong. You cannot think they were the lunatic fringe.
And the State Department acted on that understanding, in named cases, for decades— this is the part that surprised me most, and Justice Thomas has now assembled it in one place. Joseph Speck, born here to parents domiciled in Switzerland: passport denied, 1878. Ludwig Hausding, born here to Saxon parents temporarily present: denied, 1885. Richard Greisser, born in Ohio to a father domiciled in Germany: denied on the ground that he was, on his birth, subject to a foreign power. And the child of an Irish woman named Mary Deveraux, born the day after she arrived in New York while she was still being examined for admissibility: denied.
Marissa: Five: and this is the point that bears directly on our case. Read the question the Court actually answered in 1898. Gray states it himself: whether a child born in the United States, of parents who are subjects of the Emperor of China but have a permanent domicile and residence in the United States, and are there carrying on business, becomes at birth a citizen.
Domicile was a stipulated fact. John Eastman counts the word twenty-four times in the majority opinion and statement of facts; Justice Thomas counts seven assertions of Wong’s domicile in the first paragraph alone. And Gray’s fullest statement of the rule covers children born here of resident aliens, and all other persons domiciled within the United States. On this reading the finding covers children of lawfully domiciled parents.
Averill: And here’s the crux of the matter: Gray himself invoked Marshall’s maxim that general expressions in an opinion are to be read in connection with the case they arose in, and if they go beyond it they ought not to control a later judgment— he used it to dispose of the Slaughter-House language that cut against him, and the dissenters simply hand it back. There’s also this, which is checkable and uncomfortable: Gray quoted Justice Story for the proposition that persons born in a country are generally deemed citizens of it, and stopped one sentence short. Story’s very next sentence says a reasonable qualification would exclude children of parents abiding there temporarily.
Put it together and the modern argument is this. The Citizenship Clause requires complete, political jurisdiction. Lawful domiciliaries have it. Temporary visitors don’t. And people never admitted at all certainly don’t. That is a serious argument made by serious people, and it does not require you to believe a word George Collins ever wrote. I’ll give you the answers in a moment, because five of them were handed down this June and they’re better made in the Court’s own voice than mine.
Marissa: On January 20, 2025, his first day back in office, President Trump signed EO 14160, “Protecting the Meaning and Value of American Citizenship.” Its operative rule is narrower than most reporting suggested: citizenship does not automatically extend to a person born here when the mother was unlawfully present, or lawfully but only temporarily present, and the father was not a citizen or lawful permanent resident. Agencies were directed to stop issuing and stop accepting documents recognizing such children as citizens.
The order never took effect; every district judge who looked at it blocked it. In June 2025 the administration won a procedural victory in Trump v. CASA, where the Court held that lower courts generally cannot issue universal injunctions— so the cases went forward as class actions. Three plaintiffs proceeding under pseudonyms— a Honduran citizen expecting a baby, a Taiwanese citizen, and a Brazilian citizen— sued in New Hampshire on behalf of all children the order would deny, and the district court certified the class and enjoined the order.
Averill: On June 30, 2026, it struck the order down. And here’s the first thing you might wrong when I first read the news coverage: the judgment was six to three, but the constitutional holding commanded only FIVE votes. Chief Justice Roberts wrote for himself, Sotomayor, Kagan, Barrett, and Jackson. Justice Kavanaugh concurred in the judgment and dissented in part— he agreed the order was unlawful, but on purely statutory grounds, and expressly rejected the Court’s Fourteenth Amendment reasoning. Thomas, Gorsuch, and Alito dissented.
Five votes.
Marissa: Roberts’s majority starts with Calvin’s Case and Blackstone: allegiance in return for protection, arising at birth no matter how momentary and uncertain the presence. Then he plays the most interesting card in the opinion, which arrived through an amicus brief from the scholar Gerard Magliocca. The common law rule applied to children born in the realm to parents subject to expulsion: the children of Roma people were natural-born subjects even though British law at the time directed the Roma to leave on pain of imprisonment or death. The English rule was not suspended for people the sovereign had ordered out. That’s a direct answer to the argument that unlawful presence defeats birthright citizenship— answered on the restrictionists’ own historical ground.
And for the meaning of “jurisdiction,” he goes where Gray went: Schooner Exchange. So the majority’s answer to the “two conditions” argument isn’t that the second condition does not work. It’s that the work it does is the work Marshall described— it carves out the narrow class over whom the United States has waived its own authority out of respect for another sovereign. Diplomats. Occupying armies. Tribal nations, to whom we ceded part of our jurisdiction by treaty. No such concern applies to an undocumented father in El Paso: no foreign sovereign, Roberts writes, would have any motive for wishing him outside this nation’s authority.
Averill: Then a footnote that is, for our purposes, the most important sentence in the whole volume. The dissent argues a domicile requirement can’t have been an anti-Chinese device, since many Chinese immigrants were already domiciled here. Roberts answers with Wharton— the leading domicile theorist himself— who wrote that Chinese children born in America were not citizens because the Chinese as a population could not be domiciled in the United States. And the government made exactly that argument in 1898: that all Chinese persons, as a rule, are but temporary residents of this country.
That is the sentence from the 1897 brief I asked you to remember. The domicile theory was not an alternative to the racial argument. In the hands of the people who invented it, it was the vehicle for it— because you can always declare that a whole people is incapable of settling. Fuller said it in dissent. Wharton said it in his treatise. Roberts closes by turning the feudalism charge around: where the dissents see feudalism, the Framers of the Fourteenth Amendment saw emancipation.
Marissa: Justice Jackson’s concurrence is the one I’d assign if I could assign one thing. She spends it on the people usually absent from this story: the Black Americans who, in more than six hundred conventions before the war, argued they were already citizens by birth. If asked what evidence they brought to sustain their qualifications, one convention resolved, they would offer certificates of birth and nativity. Freed Blacks did not seek a rule catering only to themselves— and she quotes Douglass in 1867 saying he wanted a home here not only for the negro and the mulatto but wanted the Asiatic to find a home here and feel at home here, sixteen years before the Chinese Exclusion Act. Her charge against the dissent is that its bottom line, that for certain people being born on American soil will not suffice, is a return to the core tenet of Dred Scott.
Averill: Justice Thomas’s dissent, joined by Gorsuch, runs about ninety pages and is the most substantial statement the domicile theory has ever received. Citizenship followed birth and domicile. Dred Scott himself argued he was a citizen of Missouri because he was domiciled there. The freedmen qualified because they were unambiguously Americans with no other homeland. Temporary visitors did not.
And he has a rebuttle; if the domicile theory was invented to exclude the Chinese, why were the people it actually excluded named Speck, Hausding, Greisser, and Deveraux? He also notes, correctly, that when the government did set out to exclude the Chinese in the 1890s, it argued against the domicile rule, because Wong’s parents plainly were domiciled. Set that against Roberts’s footnote and you have the live historical dispute in one exchange: was the domicile theory a neutral rule that happened to catch Europeans, or a rule that could be flexed to declare an entire race incapable of domicile? I lean toward Roberts, on the strength of Wharton’s own words. But Thomas’s list of names is real. And notice that in a footnote he reserves the question whether children of long-resident undocumented parents can be domiciled here— narrower than the order itself.
Marissa: Justice Alito’s dissent is a different theory, and the two aren’t fully compatible. His test is not domicile but sole allegiance: the Amendment confers citizenship only on children who at birth owe allegiance solely to this country— and he runs through the constitutions of Mexico, Guatemala, Honduras, the Philippines, and China to show that these children are automatically made nationals of their parents’ countries.
His reading of Wong Kim Ark is the interesting part for us. He says the case was rightly decided, and rightly decided because of exclusion: Wong’s parents, being Chinese, were forbidden by law to naturalize, so by establishing domicile they had done everything within their power to express their desire to become Americans. Roberts calls that an ad hoc exception at war with Alito’s own text. Maybe. But notice what’s happened— the exclusion laws, the ugliest thing in this story, have become in a dissenting justice’s hands the reason the case came out right.
Averill: And lastly, Justice Kavanaugh, who is why this case is not over. His statutory argument is tidy. Section 1401(a) of the immigration code, enacted in 1940 and carried into the 1952 Act, grants citizenship to a person born in the United States “and subject to the jurisdiction thereof”— the exact constitutional words, which by then the Court had construed in Wong Kim Ark to admit only four exceptions, treated as a closed set. When Congress reenacts language a court has construed, it adopts that construction. And from 1940 through 2025 the executive branch consistently read the statute that way. So the order exceeds the statute, and that’s the end of the case.
His constitutional argument is the road map. He thinks Wong Kim Ark was wrong to treat the exceptions as a permanently closed set, because that’s not how the Court interprets the Constitution anywhere else— we apply the Fourth Amendment to cars and the First to the internet. And the only principle unifying the four old exceptions, he says, is that in each the parents were citizens of another nation, which children of parents unlawfully or temporarily here also fit. Roberts’s rejoinder lands: Wong’s own parents weren’t U.S. citizens either, and Kavanaugh concedes Wong was rightly decided, so the principle doesn’t unify.
Marissa: But here’s the practical upshot, and it’s why I’d tell you to watch this space. On Kavanaugh’s view, the Fourteenth Amendment does not forbid what the order tried to do. Only the statute does. And Congress can amend a statute. It has considered such bills for thirty years— Harry Reid sponsored one in 1993— and never passed one.
Six weeks after the decision, on August 6, 2026, the President signed two more executive orders: one aimed at commercial birth tourism, one attempting to define additional categories of children as ineligible— children of foreign lobbyists and foreign-government employees, children of members of designated terrorist organizations, children whose parents obtained status by fraud. He called the June ruling very unfortunate and close, and said the administration was making adjustments.
So the pattern holds. The Constitution says one thing. The executive branch tries to narrow it by decree. The courts push back. Somebody drafts a new rule. The only thing that has changed since 1915 is that this time a justice has told the drafters which door is unlocked.
Averill: One more detour, because there’s a way of thinking about all this that comes from a novelist rather than a judge. In 1980 Maxine Hong Kingston published China Men, a book about her father and grandfathers and great-uncles, the men who came to Gold Mountain. In the exact formal center of the book, she puts a chapter called “The Laws”: a dry summary of the statutes and court decisions that shaped Chinese life in America.
The literary scholar Brook Thomas makes an observation about that placement that’s clarifying. Kingston puts the law in the middle. Not at the edges, as background, and not everywhere, as an all-determining force. Laws do not decide the shape of people’s lives, but they absolutely determine how those lives can be fashioned. Under 1898 she notes, simply, another victory: the Supreme Court held that a person born in the United States to Chinese parents is an American, and it’s the law on which most Americans of Chinese ancestry base their citizenship today.
Marissa: On either side of that chapter sit “The Father from China” and “The American Father.” The narrator offers three incompatible stories of how her father arrived— legally, as a native-born citizen, and illegally— and lets them sit there. She describes the 1906 fire that burned the Hall of Records, so that an authentic citizen suddenly had no more paper than an alien, and every China Man was reborn out of that fire a citizen.
And here’s Thomas’s point. None of that is possible without Wong Kim Ark. If no one of Chinese descent could be a citizen by birth, paper sons would be worthless, because there’d be no real sons to imitate. Earlier in the book a grandfather on the transcontinental railroad is swindled by a “Citizenship Judge” selling fraudulent papers— the promise was a fraud because the underlying thing didn’t exist. After 1898 it exists. The forgery becomes possible because the real thing became possible.
Averill: But notice what Kingston does not do, which is treat the legal victory as the whole story. Between “The Laws” and “The American Father” she inserts a chapter called “The Making of More Americans.” Formal citizenship is necessary and not sufficient— as Black Americans had already learned in the most brutal way. So she answers the standard question, what makes an American, with a different one: who made America? Even if her grandfather had not spent half his gold on citizenship papers, she writes, he was an American for having built the railroad. And there’s the great uncle, Kau Goong, urged to leave California to rejoin his wife, who plants himself and roars at the family: “We belong here.”
Marissa: Kingston doesn’t accept that the land is inanimate matter, and she doesn’t ask anyone to forget where they came from in exchange for belonging. Land is made by the labor poured into it; the claim to belong is made by the making; and the law, sitting in the middle of the book, is what allows that claim to be recognized. The rule Wong Kim Ark established is narrow— it says only that descent cannot determine citizenship at birth. It can’t tell you whether your neighbors will accept you, or whether an inspector will believe you. But its refusal to let bloodline settle membership is what makes possible a citizenry mixed enough that people keep having to renegotiate what “we” means.
Averill: The word “person.” The Bill of Rights— the part of the Constitution that actually protects you from the government— almost never says “citizen.” It says person. No person shall be deprived of life, liberty, or property without due process of law. That was probably not a deliberate act of inclusive genius in 1791. But we saw the same shift do real work in the Fourteenth Amendment, and Justice Gray hung a good part of his opinion on exactly that word. In a legal culture that takes the letter of the law seriously, that word sitting there might be less a historical oversight than an opportunity— a reminder that the deepest protections in the American system were never keyed to membership in the club.
Marissa: We’ve told you a story with a victory in it, twice— 1898 and 2026— and I’d be misleading you if I let you leave thinking the question of who is born into American citizenship has been fully and satisfactorily answered. After all, this series is about SCOTUS cases that suck. In this case, it’s not the findings that suck. It’s the closeness of the votes and the lack of impact the findings had on the Wong family specifically and ethnic Chinese in general (due to Chinese Exclusion) and administrative strategies to circumvent it.
Three years after Wong Kim Ark won, the Court decided Downes v. Bidwell and began the line of cases holding that the Constitution does not follow the flag in full to territories the United States acquires but does not intend to make into states. The consequence today: a person born in American Samoa is born on soil under American sovereignty and is a national of the United States, not a citizen— and when American Samoans have gone to court arguing the Citizenship Clause covers them, they have lost. There are people alive right now, born under the American flag, to whom “all persons born in the United States” does not apply.
Averill: And the June decision itself rests on five votes, with a sixth justice publicly explaining that the amendment permits by statute what the President attempted by decree. And Wong Kim Ark: he won. His name is on a decision that the Chief Justice of the United States cited approvingly one hundred and twenty-eight years later to protect several hundred thousand babies a year. That’s about as large a legacy as an American cook from Sacramento Street could possibly have.
And it did not save his eldest son, who was deported to a village he’d never leave again. It did not stop his own arrest in El Paso. It did not spare him the affidavit from a stranger swearing that he was himself. It did not stop the interrogation rooms on Angel Island, where his youngest son sat for three weeks at eleven years old, forbidden to speak to the father he had crossed an ocean to meet.
Marissa: At around sixty-two, Wong Kim Ark got on a ship and left the country whose citizenship he had spent his life proving he possessed, and he never came back. He died in the country his parents came from. The lesson is not that the law doesn’t matter. His case mattered enormously— Koh’s point is that legal protection remains absolutely necessary for people facing a state with the power to seize their bodies, and Wong had what most people in his position lacked: excellent lawyers, a community that had spent a generation learning to fight through litigation, and money for bail. Seven percent of the Chinese population went to court in a single decade. That is not passivity, and it is not luck.
Averill: The lesson is that a constitutional victory is the beginning of an argument, not the end of one. Rights on paper have to survive contact with clerks, inspectors, forms, quotas, presumptions, and men with stamps. And there’s a warmer version of the same lesson, which I’d rather end on. In July 1926, a fifty-something cook with short western hair walked out of the Angel Island detention barracks with an eleven-year-old boy who spoke no English, put him on a ferry, and took him home to a room on Sacramento Street, four blocks from where his mother had given birth to him alone in 1870, because there was no hospital in San Francisco that would take her. That boy grew up, served in the United States military, and raised a family in the Bay Area.
Marissa: Wong Kim Ark spent thirty years proving a thing the Constitution already said. The proof did not save him. It saved his son. That may be the most that any of the USA’s immigrants get.
Show Notes
Eastman, John C. 2019. “The Significance of ‘Domicile’ in Wong Kim Ark.” Chapman Law Review 22 (2): 301–.
Frost, Amanda. 2021. You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers. Boston: Beacon Press.
Hyde, Carrie. 2018. Civic Longing: The Speculative Origins of U.S. Citizenship. Cambridge, MA: Harvard University Press.
Kingston, Maxine Hong. 1980. China Men. New York: Alfred A. Knopf.
Koh, Jennifer Lee. 2022. “Race, Immigration Law, and Christianity: Reflections and Tensions Raised by United States v. Wong Kim Ark.” Political Theology 23 (5): 471–.
Magliocca, Gerard N. 2026. “Without Domicile or Allegiance: Gypsies and Birthright Citizenship.” Harvard Journal of Law & Public Policy 49, forthcoming.
Pegler-Gordon, Anna. 2024. “Wong Kim Ark’s Children: Immigrant Citizenship under Chinese Exclusion.” Citizenship Studies 28 (4): 201–21.
Sumner, Charles. 1849. “Argument of Charles Sumner, Esq. against the Constitutionality of Separate Colored Schools, in the Case of Sarah C. Roberts v. The City of Boston.” Boston: B. F. Roberts. Reprinted as “Equality Before the Law,” Making Freedom History. https://makingfreedomhistory.org/source/3-7-10-excerpts-from-the-argument-by-charles-sumner-equality-before-the-law/.
Thomas, Brook. 2007. Civic Myths: A Law-and-Literature Approach to Citizenship. Chapel Hill: University of North Carolina Press.
Court Opinions
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
Elk v. Wilkins, 112 U.S. 94 (1884).
Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).
Plessy v. Ferguson, 163 U.S. 537 (1896).
Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
Trump v. CASA, Inc., 606 U.S. 831 (2025).
Trump v. Barbara, 609 U.S. ___, No. 25-365 (U.S. June 30, 2026).
United States v. Downes v. Bidwell, 182 U.S. 244 (1901).
United States v. Wong Kim Ark, 169 U.S. 649 (1898).
United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898) (Fuller, C.J., dissenting). Accessed via Wikisource.https://en.wikisource.org/wiki/United_States_v._Wong_Kim_Ark/Dissent_Fuller.
[1] Edward Bates, “Opinion of Attorney General Bates on Citizenship” (Washington, DC: U.S. Government Printing Office, 1862), reproduced by the Center for Civic Education, PDF, https://akhilamar.com/wp-content/uploads/2026/07/HistoricalDocument_CenterForCivicEducation_Opinion_EdwardBates_On_Citizenship_1862.pdf.
[2] Charles Sumner, “Argument of Charles Sumner, Esq. Against the Constitutionality of Separate Colored Schools, in the Case of Sarah C. Roberts v. The City of Boston” (Boston: B. F. Roberts, 1849), excerpted as “Equality Before the Law,” Making Freedom, accessed August 16, 2026, https://makingfreedomhistory.org/source/3-7-10-excerpts-from-the-argument-by-charles-sumner-equality-before-the-law/.
[3] United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898) (Fuller, C.J., dissenting), Wikisource, https://en.wikisource.org/wiki/United_States_v._Wong_Kim_Ark/Dissent_Fuller.
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